Judgment :- The appellant/accused was charged with the offence punishable under Sec.302 IPC. Appreciating the evidence on record the trial court found that the appellant/accused was exercising his right of private defence; but he exceeded it. Accordingly, he was convicted for the offence punishable under part I of Sec.304 IPC and was sentenced to undergo rigorous imprisonment for six years. This conviction is under challenge in this appeal. 2. It is contended that the accused had not exceed his right of private defect. One facing danger to his own life due to threat from another cannot exercise his private defence in such a way that any injury being inflicted shall not reach the vital part of the body of the aggressor. Therefore having found that the appellant/accused was exercising the right of private defence, the trial court erred in finding that the he had exceeded it, especially when PW9 doctor who conducted autopsy and issued Ext.P9 post mortem certificate clearly stated that injury No.5 alone on the body of the deceased was fatal. According to him, as other injuries were no fatal injuries, it could not have been found that he had exceeded his right of private defence. It is further contended that it is discernible from the evidence of PW1 and PW2 and also PW14, though hostile, that the aggressive act came from PW2 when he questioned the accused with regard to his default in reconstructing the boundary fence and that there was quarrel between the two. PW14 who came there tried to separate PW2 catching hold of him, so that shall not be any assault by him on the accused. It was at that time the deceased caught hold of the neck of the accused causing apprehension of death or grievous hurt. It was to escape from such assault by the deceased, as is discernible from the version of the accused in his 313 statement, that he inflicted the injuries. Therefore, on that count also this is a case squarely coming within section 100 IPC. So the conviction and sentence are bad. 3. PW2 and the accused were friends; but later they fell apart. There was a boundary dispute between them. In respect of the same there was police complaint as well. PW2 and the deceased were also friends, During August 1993 there was Onam celebration in a club near Kanjiramala junction in Thalayolaparambu-Kuthattukulam road. So the conviction and sentence are bad. 3. PW2 and the accused were friends; but later they fell apart. There was a boundary dispute between them. In respect of the same there was police complaint as well. PW2 and the deceased were also friends, During August 1993 there was Onam celebration in a club near Kanjiramala junction in Thalayolaparambu-Kuthattukulam road. PW2 and the deceased went to the club. They played cards. Later at about 9.30 p.m. they went out of the club. At that time, according to PW2, they saw the accused standing in the road. But the case of the accused was that he had also been to the club after the day’s labour. He saw the deceased and the PW2 who was having enmity towards him coming to the club. He felt that there may be some untoward incident. Therefore he withdrew from the club and went outside. It was at that time PW2 and the deceased also came out. Two brothers of the deceased were there in the nearby shed. Thus it is common case that on the road side, in front of the club, PW2 and the deceased on the one side and the accused on the other side met each other. PW2 questioned the accused on the boundary dispute and the failure of the accused in not reconstructing the fence. There ensued scuffle and quarrel between the two. Even according to the accused, in the his 313 statement, at that time that deceased had not intervened in the quarrel. PW14, who came to the scence, had caught hold caught hold of PW2 so that the PW2 might not make any attack on the accused. According to PW1 it was at that they time the deceased and his brother had asked them why the quarrel was. He also tried to appease the accused. At that time the accused turned towards the deceased asking who was he to intervene in the matter and stabbed one after another successively. He cried that Joy, the accused, had stabbed him. He was then taken to hospital where he was declared dead. Thus this is a case where really there was no right of private defence available, the Public prosecutor submits. 4. The version given by PW1 in Ext. P1. FI statement and his deposition are almost similar. He cried that Joy, the accused, had stabbed him. He was then taken to hospital where he was declared dead. Thus this is a case where really there was no right of private defence available, the Public prosecutor submits. 4. The version given by PW1 in Ext. P1. FI statement and his deposition are almost similar. According to him there was successive infliction of injuries by the accused on the deceased. Going by Ext.P9 post mortem certificate issued by PW9, there were altogether 14 injuries. The first one is on the middle chest, the second one on the left side of the front chest, the 3rd one again on the left side of the front of the chest; the 4th one still another injury on the left side of the chest, the 5th one is also a similar injury on the left side of the chest, the 6th one on the left arm, the 7th one on the left thumb, the 8th one on the right hip, the 9th one on the left thigh, the 10th one again on the left thigh, the 11th one an aberration on the knee, the 12th injury on the right thigh, the 13th another on the left shoulder and the 14 being only an aberration. Thus all the injuries except injury No.7, injury No.11 and injury No.14, were incised injuries on the chest and on other parts. If at all accused was exercising his right of private defence there arises no question of successive infliction of injuries on the chest, back, on the thigh, on the shoulder and other parts. 5. Certainly the right of private defence is a very valuable right serving a social purpose and should not be construed narrowly. At the same time it cannot be based on surmises and speculations. In order to find whether the right is available to an accused, the entire incident must be examined with care and viewed in its proper setting. It is no doubt true that nothing is an offence which is done in exercise of right of private defence of person or property, for the purpose of repelling an unlawful aggression, within certain limits. The right of private defence under the Indian Penal Code is entirely a preventive measure provided to a person who is unlawfully attacked by another, to dispel such attack. The right of private defence under the Indian Penal Code is entirely a preventive measure provided to a person who is unlawfully attacked by another, to dispel such attack. No such right is available under the code in respect of an act which by itself is an offence. In other words the principle of right of private defence cannot legitimately be used as a shield to justify an act of aggression. The right commences as soon as reasonable apprehension of danger to the body arises from an attempt or thereat to commit an offence, although the offence may not have been committed. But certainly not until there is that reasonable apprehension. As soon as the cause of reasonable apprehension disappears, there can be no occasion to exercise the right of private defence. 6. Therefore the court dealing with the plea of right of private defence had to weigh the evidence on record to conclude whether that plea is acceptable. Because it is essentially a finding of fact. As held by the Apex court is Lakshman Sing v. Poonan Singh and others (AIR 2003 SC 3204) if the fact situation shows that in the guise of self-preservation what really has been done is to assault the original aggressor even after the cause of reasonable apprehension has disappeared, the plea of the right of private defence can legitimately be negatived. 7. When there was altercation between the accused and PW2, with whom was the deceased at that time, the deceased did not intervene in the quarrel at that time, going by the statement of the accused made under Section 313 Cr.P.C PW 14 intervened and separated PW2. It was at that time, as deposed by PW1, the deceased asked why the quarrel was. Then the accused turned towards the deceased asking who he was to intervene in the matter and stabbed him successively. 8. Thus it is clear that the threat or apprehension if any that the accused had from PW2 disappeared when the latter was separated by PW14. Even in the altervation between the accused and PW2, the deceased did not intervene. So the accused did not have an occasion of any apprehension of danger from the deceased. Later he only asked why the quarrel was for. Even in the altervation between the accused and PW2, the deceased did not intervene. So the accused did not have an occasion of any apprehension of danger from the deceased. Later he only asked why the quarrel was for. This conduct of the deceased in asking so, will not bring about a situation of defending his own body as against the deceased in terms of Section 97 IPC. On the other hand, the conduct of mere asking by the accused as to what the quarrel was for will not reasonably cause any apprehension of even grievous hurt much less death, especially when the deceased was not armed at all. If at all there was occasion to exercise such right, it does not come within section 100 IPC, to justify the homicide. 9. In Kulwant’s Singh v. State Of Punjab (AIR 1994 SC 1271) the apex court held as follows; “Having given our earnest consideration to these submissions and having considered the evidence and the injuries found on the deceased and the three injured witnesses and also the accused, we agree with the High Court that the appellant had a right to exercise of right of self-defence. But the circumstance would go to show that he had exceeded the same. The circumstances do not indicate that there was a reasonable apprehension that the complainant party would cause death or grievous injuries. In appreciating the right of self-defence in the given situation the Court has to take several circumstances into consideration. A mere apprehension is not enough, it should be a reasonable apprehension and to attract the general exception there should be material to show that death or grievous hurt could otherwise have been the result: we are of the view that there is on such apprehension in this case, as to cause the death of the deceased and causing injuries to another person by firing two shots. Therefore, he has been rightly convicted under Section 304, Part I I.P.C. Now coming to the sentence, the occurrence is said to have been taken place on 10.5.1981 and further the shooting took place because of a clash, as it has been put forward by the prosecution. Therefore, the ends of justice would be met if the sentence is reduced to 7 years’ R.I. Subject to this modification of sentence the appeal is dismissed….”. Therefore, the ends of justice would be met if the sentence is reduced to 7 years’ R.I. Subject to this modification of sentence the appeal is dismissed….”. Even if he had any apprehension against the deceased, he being at that time in the company of PW2, there arises no question of inflicting 14 injuries successively. Even if the accused had any right of private defence it did not extend to causing of death, as there was no assault at all from the deceased as to cause reasonable apprehension of death or grievous hurt on him. So the contention that he had not exceeded his right of private defence cannot on any count be accepted. 10. The mere asking by the deceased why the quarrel was for, is not an offence at all. Right of private defence arises only to defend against an offence affecting the human body or property. To claim right of private defence extending to the voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. Noting of that sort was shown in this case at least against the deceased, who did not commit any offence. (See Lakshman Singh’s case) 11. The right of private defence commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit an offence. It might have arisen in this case when there was altercation between the accused and PW2. The deceased being at that time in the company of PW2, though did not intervene, it was likely that the accused may apprehend that in a given situation he may also act against him. But that lasted only so long as the apprehension of the danger to the body continued. In this case PW14 intervened in the altercation between the accused and PW2 and separated PW2 from the accused. Thereafter, there was no reason for any apprehension of danger to his body from any one, much less the deceased. Thus this is a case where there was no right of private defence available at all to the accused, against the deceased. 12. But it is relevant to note that the accused had never come there with any premeditation as rightly and aptly submitted by the counsel for the appellant. Thus this is a case where there was no right of private defence available at all to the accused, against the deceased. 12. But it is relevant to note that the accused had never come there with any premeditation as rightly and aptly submitted by the counsel for the appellant. Necessarily he did not have an intention to cause death of the deceased Thomas. But at the same time it was an admitted case of the appellant/accused that he had inflicted injuries on the deceased Thomas. The circumstances and the incident as spoken to by PWs.1 and 2 clearly reveal that as against the accused there were two persons as his opponents, PW2 and the deceased. PW2 was in inimical terms with him. In and near by there were brothers of the deceased also. Even going by the evidence given by PW1 there were scuffle and altercation between PW2, the companion of the deceased and the accused with reference to the boundary dispute. Going by the evidence of PW14 he had attempted to catch hold of PW2 so that he should not make any attack on the accused. According to PW1 it was at that time the deceased had asked why the quarrel was. It was again at that time the accused asked the deceased who was he to interfere, as spoken to by PW14. The entire thing happened in no time as spoken to by PW2 and he did not have even time to intervene and save the deceased. Thus everything happened in applet of second. Necessarily as there was a quarrel by PW2 who was accompanying the deceased and as the accused might have felt some danger from the hands of the deceased as well, he had inflected injuries mentioned in Ext.P9 because of the passion aroused due to the quarrel. The passion aroused in the accused was still there and he was then deprived of his self control because of the provocation from PW2. When the deceased, the companion of PW2 asked, what the quarrel was for, the passion was subsisting. The accused could have seen the deceased only as companion of PW2. Necessarily, the offence falls within exception (1) to Section 300 IPC. The evidence on record shows that the accused had successively inflicted 14 injuries on different points of the body of the deceased, as discussed above. The accused could have seen the deceased only as companion of PW2. Necessarily, the offence falls within exception (1) to Section 300 IPC. The evidence on record shows that the accused had successively inflicted 14 injuries on different points of the body of the deceased, as discussed above. This can only be with an intention to cause death. Or of causing such bodily injuries as were likely to cause death. The offence thus becomes punishable under Section 304 Part I IPC. 13. The court below found the accused guilty of the offence punishable under Section 304 Part I IPC on the ground that he had exceeded the right of private defence. Re-appreciation of the evidence made as above reveals that he is guilty of the same offence, with the benefit of exception No.1 to Section 300. So the appellant is not in any way prejudiced. Thus though on different reason the conviction under Sec.304 part I has to be sustained. Consequently sentence as well. Appeal fails and is dismissed.